Buying Freedom, Amnesty, or Bail for Corrupt Officials: Draft Law on Plea Agreements

Punishment for corrupt officials is a difficult, lengthy, and painful issue for many Ukrainians. No wonder the governmental draft law on plea agreements in corruption cases resulted in a high-tension discussion.

As we have repeatedly witnessed, the processes of imposing punishment for corruption are so “triggering” for society that they cause more emotions than rationality. Unfortunately, even those things that can significantly facilitate justice in such complex cases are perceived negatively. It is not, however, all so bad.

Plea agreements are one of the legal tools that can make the lives of both investigators and judges significantly easier. But they should be used wisely. For this, a quality law should be developed.

I suggest we leave out emotions, take a rational look at the real shortcomings of the draft law on plea agreements in corruption cases, and acknowledge its advantages (yes, there are some). This requires understanding three main points.

1. A corrupt official dares to commit a crime for real profit. Therefore, it is necessary to deprive them of criminally acquired assets and the opportunity to get them in the future.

Enrichment is the purpose for which officials commit crimes. They want to get illegal extra profits through the use of opportunities in the public service. And even a sentence of 5 or 10 years in prison can leave illegally acquired property in the possession of their relatives or friends.

Therefore, undoubtedly, it is necessary to recover the stolen assets because unless this is done, inequality due to corruption will only exacerbate.

How to ensure it once the corrupt official decides to conclude a plea agreement? Especially keeping it in mind that when a person concludes a deal, they expect a mitigation of punishment. Government officials propose to do this through the imposition of large fines (probably, this is what the public referred to as “buying freedom”). However, if the investigation finds only a part of the criminally acquired assets or the corrupt official is a participant in a large scheme with many persons involved, a fine alone is very likely to be insufficient.

To this end, using the tool of special forfeiture will prove effective. Thus, even without imprisonment, the accused will suffer the consequences, but not as much as if they had been imprisoned. And there will be no such thing as “the official stole 3 billion, was caught on receiving 300,000, bought himself out, and is free and happy.” After all, according to the law, it is possible to confiscate all the income of a person unless they confirmed the legality of their acquisition. This is more than just a fine.

Unfortunately, the government law mentions only fines, but does not focus on special forfeiture. It is through such a tool that the prosecution may, if necessary, deprive a person of a real financial incentive to corruption, but this is not articulated in the draft law as a condition for mitigation of punishment. Therefore, we are convinced that such a provision should be included in the draft law because, in addition to the real economic effect, it would have a deterrent effect on others.

Moreover, the punishment should be proportional to the crime committed. It is difficult to assess such proportionality in corruption cases, it is difficult to subject it to some clear rules. But one thing is sure: when a person concludes a deal, they want a mitigation of punishment. That’s how agreements work.

Therefore, the very fact of depriving a person of criminal assets or compensation for losses is not a punishment. This only restores the original state of affairs before the crime was committed. Whereas a fine and deprivation of the opportunity to hold office, the fact of convicting a person, that is, recognizing them as a criminal, and entering them in the register of corrupt officials are precisely those legal restrictions that may be sufficient for punishment. The corrupt official will still pay for the committed severely, but avoiding imprisonment will be a silver lining.

2. An agreement is when both parties benefit from the deal. At the moment, it is unclear what benefits the investigation will have under the new law from concluding an agreement featuring a suspended sentence

It is necessary to clearly distinguish between the current state of affairs and what the government offers, as well as to pay attention to the gravity of the crimes charged.

Let’s look at examples. Now, for example, Vsevolod Kniaziev, the ex-chairman of the Supreme Court, who is accused of a particularly grave crime, can conclude a plea agreement. According to it, he will make a deal with the prosecutor and provide evidence to expose, for instance, an oligarch who committed corruption crimes. But he is unlikely to get any benefits for himself.

So, now the sanction of the article does not allow Kniaziev to get a suspended sentence or pay a fine, and the incriminated crime did not cause any damage. But according to the draft law:

1. he could be released on parole with a probationary period of up to 6 years, or
2. he will get a sentence, for example, 1 or 2 years of imprisonment, as well as
3. he could pay a fine from UAH 102.017 million to UAH 204 million.

However, the possibilities for concluding agreements are different for different persons involved because the conditions depend on the articles under which they are charged. Thus, Tetiana Ilieva, the judge of the Pechersk court, who is accused of a grave crime, even today is not restricted in terms of concluding an agreement. The content of the agreements in a potential deal with Ilieva will mainly be determined by her lawyers and the prosecutor independently.

This demonstrates some dissonance because for grave crimes, a person can be exempted from real punishment without exposing accomplices or compensating for losses even now. But in agreements on especially grave crimes, the accused must necessarily expose other persons participating in the scheme. 

The draft law proposes only compensation for damages for especially grave crimes. These damages, as the case of Kniaziev shows, are not always caused. It should also be borne in mind that some especially grave crimes can be committed without accomplices. For how do you expose an accomplice when there is none? That is why it is necessary to establish alternative conditions under which a corrupt official may not really serve a sentence, to give the prosecutor leverage that will also prevent abuse (for example, a fine).

In addition, suspended sentence under agreements on corruption crimes will be available to corrupt officials who are prosecuted by other bodies, and not only by the NABU. This means that these cases will no longer be heard by the HACC, but also by local courts. If the agreements approved by the HACC are often the subject of public discussion, which might contribute to the quality of proceedings in such cases, then there are too many local general courts, there is still too little trust in them, and it will be extremely difficult to track such court decisions. Here we run the risk that a person will really benefit from the situation with minimal advantages for the state.

In addition, the new draft law proposes to link the expungement of conviction only to the fact that the person did not commit other criminal offenses. This is wrong because a conviction imposes certain restrictions on a person, including that he/she cannot commit other crimes. If the person fulfilled all the obligations imposed on them by the court—checking in with the probation service, etc.—then the conviction can be expunged. But the new draft law proposes to expunge the conviction given the absence of other crimes alone. This will greatly simplify the convict’s life, which does not quite correspond to the logic of such an institution as a criminal record.  

Therefore, the law should be very specific about all the points mentioned above. Then the benefit the person gets from exemption from real punishment will correlate with the needs of the investigation, the court, and the demand of Ukrainians.

3. The ultimate responsibility for approving the agreement still rests with the judge.

The conclusion of an agreement is always a search for acceptable options for both the prosecution and the defense counsel. Therefore, ample opportunities for the prosecutor in this regard can really allow more effective prosecution of corruption.

The draft law proposes to approve the conclusion of such an agreement by the head of the prosecutor’s office. Although this is one of the safeguards, it may not work. It is worth remembering that the final decision on the approval of the agreement is still made by the judges. It is they who assess the existence of factual grounds for admitting guilt, the compliance of such an agreement with the interests of society, etc. The last category is the most difficult to assess.

Judges now do not have the opportunity to examine all the materials of the pre-trial investigation to assess how correctly the agreement was concluded. In our opinion, giving them the authority to request these materials will improve the quality of evaluating the possibility of approving the agreement. Then the judges will be able to check whether the prosecutor really assessed the actions of the person in view of the collected evidence. This will also create conditions for the lawful prosecution of the judge in case they approve an inappropriate agreement.

But how will Ukrainian society benefit from such agreements? 

Criminal process is a complex and expensive procedure. Therefore, most civilized states have a mechanism for speeding up the consideration and conviction of a person—an agreement with the accused.

In Ukraine, the institution of deals in corruption cases was significantly curtailed in 2014. Then, together with the adoption of the law on the NABU, safeguards were established so that the defendants in corruption cases would not be released by local courts without proper punishment.

Ten years have passed, the practice of bringing judges, MPs, or heads of public authorities to criminal liability is developing with the expansion of the HACC practice. But the criminal process remains lengthy and expensive. Cases can take a long time to be heard, and although interest in them decreases over time, the state’s resources are still spent on determining the guilt of potential corrupt officials.

Therefore, the practice of agreements is applied; this is much faster and more effective. In this way, losses can be compensated, and a person can be convicted, thus removing the possibility for enrichment and freeing up the resources of investigators, prosecutors, and judges to other, much more complex and dangerous corruption cases for the country.

Can this be called “buying freedom”? It is unlikely, otherwise the punishment for any crimes in the form of a fine can be considered as buying freedom. Moreover, as a result of a full-scale consideration, which will last for years, a person may be declared innocent, or the statute of limitations will expire. Alternatively, they might confess to the crime and will come across real obstacles to further corruption-related actions.

Therefore, this high-profile draft law on agreements should be finalized. Then the criminal process will really speed up, and the mechanism of agreements will function without abuse. All interested parties—the accused, the investigation, and Ukrainians who also closely follow the consideration of these cases—will clearly understand the potential benefits of such agreements.